[Amended 21 October]

After a comment from Olamide Sanni, and a significant number of visitors from housing associations/social landlords turning up in my logs, it is clear that there is a big grey area for tolerated trespassers and the effect of Bristol CC. What of assured tenants, many of whom will have received a suspended possession order in the offending N28 form?

So, by popular request, I’ll have a stab at it (with the usual disclaimer that this does not constitute legal advice and should not be taken as any more reliable than a Tory tax policy emphasised).

The problem is that in Bristol CC, the Court of Appeal addressed itself solely to the Housing Act 1985 s.85 on the extended discretion of the Court and interpreted the then N28 in those terms. S.85 HA 1985 is solely concerned with secure, local authority, tenancies. Here it is, in part:

85.

(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.

(2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may—

(a) stay or suspend the execution of the order, or

(b) postpone the date of possession, for such period or periods as the court thinks fit.

(3) On such an adjournment, stay, suspension or postponement the court—

(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and

(b) may impose such other conditions as it thinks fit.

(4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession.

The Court’s discretion in possession proceedings for assured tenancies falls under Housing Act 1988 s.9. Here is a truncated version of that:

9.—(1) Subject to subsection (6) below, the court may adjourn for such period or periods as it thinks fit proceedings for possession of a dwelling-house let on an assured tenancy.

(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to subsection (6) below, may—

(a) stay or suspend execution of the order, or

(b) postpone the date of possession,

for such period or periods as the court thinks just.

(3) On any such adjournment as is referred to in subsection (1) above or on any such stay, suspension or postponement as is referred to in subsection (2) above, the court, unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, shall impose conditions with regard to payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits) and may impose such other conditions as it thinks fit.

(4) If any such conditions as are referred to in subsection (3) above are complied with, the court may, if it thinks fit, discharge or rescind any such order as is referred to in subsection (2) above.

Spot the difference? Perhaps not (with the obvious exception of the mandatory grounds for possession for assured tenants).

However, there is a difference between HA 1985 s.82 and HA 1988. HA 1985 s.82(2) states

Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order.

while the HA 1988 has no comparable phrase giving the date of the end of the tenancy. It is this specified date for the end of the tenancy which caused the problems with the old N28, which specified a date and postponed enforcement of the Order, rather than possession.

It may therefore be arguable that for assured tenants, the tenancy doesn’t end until enforcement of the Order, rather than the date of possession.

But there has been no judicial decision as to whether HA 1988 has the same effect as HA 1985 in regard to the inadevertent tolerated trespasser created by Harlow v Hall for secure tenants. Indeed the susequent amendments to the Practice Direction of the CPR also only references secure tenants.

So, the official answer is ‘dunno’.

And, as far as I know, this hasn’t been brought to a court yet in terms of a restitution of tenancy under HA 1988 s.9(2)(b) – or at least not in published form – while the HA 1985 s.85 (2)(b) route is well known. Nor has the question arisen in terms of, say, enforcing repairs under a tenancy agreement.

As it stands, we don’t know if assured tenants have been caught by the old N28 problem, and, if they have, if there is a similar route to restitution of tenancy.

But, given that s.9 HA 1988 makes provision for mesne profits, and given that old style N28s were dished out aplenty to Housing Association tenants, I would be quite surprised if the inevitable test case didn’t say that that the situation was the same. In any case, the new Postponed Possession Orders can be made in respect of assured tenants, as made clear in Bristol CC itself, and probably should be made.

Overall then, although we have no specific guidance, I think it is likely that the situation for (formerly) assured tenants is best taken as being the same as secure tenants. But it might not be.